Sexual harassment legal threshold: ‘hostile’

A woman in my office wears very suggestive clothing, such as short skirts and tight-fitting or low-cut blouses. My co-workers and I feel it’s inappropriate, but her supervisor and other managers haven’t said anything about it, so it seems like they are OK with it, even though it’s distracting sometimes. Now, she’s threatening to sue the company and us for sexual harassment and creating a hostile work environment because she claims the men stare at her and the women are mean to her, all based on her appearance. Does she have a case?

Ty Frankel

Bonnett Fairbourn, Friedman & Balint

Title VII of the Civil Rights Act prohibits sex discrimination. To prevail on a claim that the harassment allegedly caused a hostile work environment, an employee must prove that he or she was a member of the protected group, was subjected to unwelcome sexual harassment that was based on sex and that the harassment was sufficiently severe that it unreasonably interfered with her work performance or created a hostile work environment.

Where sexual harassment is committed by a co-worker only, he or she would also have to prove that the employer knew or should have known of the conduct and failed to take remedial action.

Here, in addition to the factors above, whether the woman alleging sexual harassment has a claim will likely depend on the severity of the harassment that allegedly occurred. How a co-worker looks at her may be actionable depending on the overall circumstances pertaining to the incidents alleged. She must show that the behavior involved was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.

It is also unclear whether evidence of how she dressed will be admissible. Whether a court will allow evidence about how a woman dresses in a sexual harassment case tends to be hotly contested and will likely be determined by the factual circumstances in the particular case at issue.

Dawn C. Valdivia

Quarles & Brady LLP

There are two types of actionable sexual harassment: Quid pro quo harassment and hostile work environment. To establish quid pro quo harassment, your co-worker must show tangible employment actions were taken as a result of her submission to or rejection of sexual advances, requests for sexual favors or other behavior of a sexual nature.

To establish a hostile working environment, she has to show that enduring offensive conduct is a condition of her continued employment or she suffers severe and pervasive conduct that creates a work environment that a reasonable person would consider intimidating, hostile, or abusive. In either case, she must show the conduct was unwelcome.

Thus, if she is required to wear suggestive clothing as a condition of her continued employment or some other job benefit, then she may have a claim for quid pro quo harassment. She also may have a claim for hostile working environment if she can show the staring and mean treatment were unwelcome and offensive and were also so severe and pervasive that she was unable to do her job.

If she can show either or both of these factors, she may have a case against the company for sexual harassment. However, both federal and Arizona sexual harassment laws apply only to the company and not individuals. Therefore, she would not have a sexual harassment case against any individual employed by the company, but she could have a claim against an individual for assault, battery or intentional infliction of emotional distress.

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